All’s fair in politics and the oil business, but the claim Canada’s facing a constitutional crisis is just politics

The fact the federal and Alberta governments were unable yesterday to reach an agreement with British Columbia on proceeding with the Trans Mountain Pipeline Expansion Project does not mean Canada is facing a constitutional crisis.

However, it doesn’t preclude one happening eventually.

Nevertheless, it’s important to state this clearly because in the next few hours we are likely to hear commentators claim Canada is experiencing a constitutional crisis. Some will do so because they are ignorant. Some will do so because they have an agenda. All will be wrong.

B.C. Premier John Horgan and PM Trudeau (B.C. Government photo).

This is a political crisis, not a constitutional crisis.

In a federation like Canada or the United States, a constitutional crisis occurs when a country’s supreme law – its constitution – does not include the tools to resolve a dispute between jurisdictions, institutions or individual office holders.

The last constitutional crisis in Canada took place a decade ago, in November and December 2008, when the prime minister, Stephen Harper, extracted an agreement from the governor general, Michaëlle Jean, to prorogue the House of Commons in violation of tradition and basic democratic principles to prevent the fall of the Conservative government in a vote of non-confidence.

This was a constitutional crisis because the mechanism by which MPs can bring down a government is not written down in the Westminster system, it is only a “convention,” that is, an understanding that is expected to be practiced honourably. Moreover, there’s nothing to be done about that because our founding constitutional document says only that Canada will have “a Constitution similar in principle to that of the United Kingdom.” In other words, we will be governed through the Westminster system.

That constitutional crisis was resolved in a way that undermined our democracy, but what is done is done.

Michaëlle Jean

The present disagreement between the government in Victoria (now supported by the one in Quebec City) and the governments in Ottawa and Edmonton is not a constitutional crisis as has been claimed by some politicians and pundits because the Canadian Constitution contains clear mechanisms for resolving such disputes, and a reasonably clear enumeration of what the rules are.

B.C. does not want the Trans Mountain Pipeline planned by Kinder Morgan Inc. to proceed; Ottawa and Alberta insist it is a national priority and must proceed posthaste. For its part, Texas-based Kinder Morgan says it will pull the plug on the project by the end of a May if it can’t get an ironclad guarantee the project can be profitably completed.

Yesterday’s gathering of Prime Minister Justin Trudeau, Alberta Premier Rachel Notley, and B.C. Premier John Horgan, dubbed an “emergency” effort to resolve the impasse, appears to have achieved little. At least fisticuffs did not break out.

After two hours, no one’s position had changed. Mr. Trudeau vowed to introduce redundant legislation to assert Ottawa’s jurisdiction over an area no one disputes is Ottawa’s jurisdiction – and perhaps to try to extend it. Like Ms. Notley, he said Ottawa is prepared to provide Kinder Morgan with financial guarantees to ensure its continued interest in the project. Without some role for the two governments in the company’s governance structure, this is not much more than corporate welfare.

Stephen Harper

Regardless, there is a lack of clarity in this situation because federal and provincial jurisdictions share responsibility for protecting the environment in Canada’s Constitution. If any legislation proposed or passed by B.C., goes too far, that will have to be determined by the courts.

And so far, the B.C. government has neither done nor proposed anything that is not allowed by the Constitution. While we may not like it here in Alberta, nowhere in the Constitution does it say, Thou shalt not create uncertainty for business.

Nevertheless, yesterday Mr. Horgan pledged to both the prime minister and his Alberta counterpart, in the words of the Globe and Mail, “that he will stand down if the court rules against his government.”

The political crisis arises because – entirely for political reasons – the governments in Edmonton and Ottawa have concluded they require an announcement that the pipeline expansion is proceeding in a hurry to achieve success in looming general elections.

Constitutional solutions, alas for the federal Liberals and the Alberta NDP, take a certain amount of time to resolve because, in the absence of agreement, they must be adjudicated by the courts.

Tactically speaking, therefore, that is unquestionably an advantage for the government of British Columbia – which suspects Kinder Morgan is looking for an exit strategy. It is obviously to the disadvantage of the Alberta NDP and federal Liberals because as 2019 nears, they can both hear the inexorable ticking of the election clock.

Nevertheless, the claims we have been hearing that this is a constitutional crisis are nothing more than political spin designed to create a sense of urgency, paint Mr. Horgan as a constitutional villain if he can’t be stampeded, and justify unconstitutional measures against his province to force his government’s compliance with the Trudeau-Notley agenda.

This is not to say that the Alberta-Ottawa program is not in the country’s interest, only that the constitutional winds don’t seem to favour it on what its proponents consider a reasonable time frame.

Well, all’s fair in love and politics – and the oil business, obviously – but the claim this is a constitutional crisis is simply … politics.

It will only become a constitutional crisis if someone tries to force the issue according to an accelerated schedule by, say, inappropriate and unnecessary use of the Emergencies Act or some other potentially unconstitutional means, as has been both advocated and speculated.

Note that the only people calling for this approach support the position taken by the Alberta and federal governments, an apparent elite consensus in those two jurisdictions that includes the conservative opposition parties in both.

Quebec’s recent opposition to shoving Kinder Morgan’s pipeline up B.C.’s nose, which has a roused such hysterical condemnation in conservative circles here in Alberta, is entirely consistent with the position on such issues taken by that province since Confederation – and the same as the position historically taken by Alberta. So no one should be astonished by this, or offended.

While we are not in a constitutional crisis now, any attempt to bypass the constitution to speed expansion of the Trans Mountain Pipeline will likely result in one.

If that happens, I dare say, it will strengthen separatist sentiment in Quebec and possibly create it in British Columbia, and not without good reason. Long term, as has already been argued here, it may also provide a precedent for some future federal government to interfere in Alberta’s affairs in ways we do not much like.

In the short term, one would think, that would create more uncertainty for Kinder Morgan, not less.

Que sera, sera, but if there is a constitutional crisis, it needs to be made perfectly clear to all who actually provoked it.

16 Comments to: All’s fair in politics and the oil business, but the claim Canada’s facing a constitutional crisis is just politics

Ron

April 16th, 2018

How about this for a “compromise” and transition plan.

1) Confirm that shipping CDN dilbit, as a solid briquette, is safe.
Lac Magentic fire and explosion was due to flammable Bakken crude, an explosive toxic substance.
CDN dilbit can be made into briquettes safe for transport. (Per CN)
2) Curtail coal shipments from BC. (Both BC coal & transit coal.)
So the hurtin’ Albertans will see that BC has skin in the game
3) Convert BC coal terminal(s) to solid bitumen terminal.
Tsawwassen is not in the Burrard Inlet, not past two strategic bridges.
4) Ship solid bitumen by rail.
Railroads can be re-purposed to carry other goods and people. Pipelines will perpetuate our f.fuel nightmare.
5) Increase refinery capacity in Alberta for conventional crude oil.
Value add in Alberta, Canada. Lower carbon footprint.
6) Ship only market ready products through current TM pipeline for local and consumption and US export.
Why not sell value -added products and increase energy security? (& no more oil tankers in Burrard Inlet.)
7) Invest in solar and wind.
Duh!

Death and Gravity

April 16th, 2018

Nothing in 100% safe against all possible contingencies. There should be some onus also on the opponents to produce evidence that the dangers are staggeringly cosmic as they pretend.

I do agree entirely with your point about re-routing. If this export mechanism truly is in the national interest — and it might be considering the amount of total federal revenue obtained from Alberta energy resources — than shifting the pipeline terminus to a new facility in Tsawwassen might be a good idea; I wonder if anyone has canvassed the Tsawwasssen First Nation’s opinion on the matter?

Death and Gravity

David Climenhaga

April 16th, 2018

In fairness, Death, this picture was taken during Stampede, and judged more entertaining by your blogger than the other options showing Ms. Notley and Mr. Trudeau together. One of the challenges of writing a blog like this is finding suitable illustrations without copyright limitations. Official government Flickr accounts are helpful, but tend not to be timely. For-profit media organizations that have privileged access to politicians do not willingly share their photos. One could make a “fair use” argument, but I prefer not to go down that rubble-strewn road. DJC

tom in ontario

Geoffrey Pounder

April 16th, 2018

“Quebec’s recent opposition to shoving Kinder Morgan’s pipeline up B.C.’s nose, which has a roused such hysterical condemnation in conservative circles here in Alberta, is entirely consistent with the position on such issues taken by that province since Confederation – and the same as the position historically taken by Alberta. So no one should be astonished by this, or offended.”

No need for Albertans to come to their own conclusions. Postmedia will tell you what you think.
It’s not enough to be incensed at BC; now Albertans have to declare war on Quebec. Alberta politics has become toxic on both sides of the aisle.
AB’s prime export is anger, not oil.

tom in ontario

April 16th, 2018

Postmedia journalists like Braid, Ivison, and others are such a pain in the sac-o-riliac. Maybe they actually believe the tripe they spew out.
It’s understandable why DJC could never work with that bunch.

Chris

brett

April 16th, 2018

Interesting. Wonder what, if any, parallels this has to the pipeline debate of the late 50’s.

One thing for certain….the very last thing that Jason Kenney wants is for the pipeline to be built prior to the next election. I suspect he cares more about the political implications for UCP than he does about moving this issue to completion. Plus he has a dislike of Trudeau since the Harper Conservatives got such a shellacing in the last election.

One thing that I will find interesting is what the Federal NDP stand will be, and how will they vote, when the legislation comes before Parliament. My guess is that they will find a reason to reject it. Bottom line for me is that the Notley NDP Government looks more Liberal than NDP as each day passes.

Farmer Dave

April 16th, 2018

Well isn’t this a perfect example of the pot calling the kettle black. Stephen Mandel goes on TV to complain that the Government of Alberta should not be providing or investing money into a pipeline project for private investors. As Mayor he lobbied the Feds, Province and the Tax Payers of Edmonton for money to build Rogers Place, an arena basically for exclusive rights by Daryl Katz to make all the money from. If Governments get into ownership of a pipeline at least that benefits all Albertans and Canadians. Looks like if government investment does not benefit Mandel and his Bud’s Government should not get involved.

Rod Adachi

April 16th, 2018

I suggest that Trudeau and Notley try to woo B.C. hearts and minds by declaring that if it’s built, they will commit a significant portion of revenues from the Trans-Mountain pipeline (royalties, taxes, etc) to resourcing sustainable, renewable technologies that will positively impact our environment. In this way, revenue from fossil fuels (which we will continue to rely on for years, if not decades, unless everybody has put in an order for an electric vehicle yesaterday) will help pay for the transition to a greener economy.

David

April 16th, 2018

It sounds so much more dramatic to say “constitutional crisis” on the TV news than “jurisdictional dispute”, which can’t be easily explained in 30 seconds or less. I agree this is not a constitutional crisis yet and probably will not become one. There are several ways the conflict or dispute could be resolved and most will likely not lead to a “constitutional crisis”.

However, the meeting did demonstrate the dispute or conflict is fairly intractable, so it is unlikely to be resolved by negotiation or agreement. Of course, most people probably already realized that, even those of us that are optimists. Also, Trudeau did say he would not punish BC, so that probably means that he is not taking the free advise of Prime Minister want to be Kenney of withholding payments, such as transfer payments to BC. I am sure such action would contravene the agreements between the Federal government and the provinces and provoke a great deal of concern and alarm by most if not all provinces, not just the one being punished. However, good cop Trudeau did not say BC would not be punished by others, so lower mainland residents may still want to brace themselves for higher gas prices in case the flow of oil from Alberta is reduced.

It is interesting Quebec has entered the fray. Most provinces, except Saskatchewan, whose interests are similar to Alberta (landlocked and oil exporter) have been fairly quiet so far. I suspect the upcoming Quebec election has prompted the normally Federalist provincial government to make itself seem a bit more assertive. After the Energy East debacle, this will win Quebec even fewer friends in the prairie provinces. Its kind of a shame, as the Quebec provincial government was very careful not to try offend the west on the Energy East issue and left the former mayor of Montreal to be the bull in the china shop. I suppose now that he is gone, they can’t rely on him to be their bad cop. It will also win the Quebec Liberals no friends with the Federal Liberals, who are already somewhat indifferent to whether their provincial colleagues get re-elected or not, in what will probably be a close race in which they could use all the help they could get.

I am not sure the Quebec statement is any indication of a groundswell of provincial support for BC, though. I think how the other provinces feel about pipelines can probably be best judged by how they responded to Energy East. Most provinces, except Quebec were moderately supportive. However, ironically the Quebec statement might cause some of the fence sitting provinces to speak up in favour of Alberta. Most provinces are not landlocked, but some well understand the difficulties of relying on going through other provinces to transport their resources. For instance, Newfoundland which had no other options for its power lines from Churchill Falls to US markets, did not get a very good deal from Quebec.

In any event, it is not exactly Alberta or BC against the rest of Canada as some on either side would like us to believe. Each province has its supporters elsewhere in Canada and it is certainly not, as one Quebec MP so poorly put it as “everyone is against the pipeline”. If that were the case, we wouldn’t still be talking about it now.

Bill Malcolm

April 16th, 2018

Keep putting out these columns, Mr Climenhaga. They are simply the best commentary on the pipeline expansion boondoggle I have read anywhere. Coop, calm and collected, as the old saying goes. And no doubt dead on.

Farmer Brian

April 17th, 2018

David I would certainly agree that this is a political crisis. One that the temperature certainly did rise on again today. Bill 12 that was introduced in the legislature today by the governing NDP will certainly ruffle some feathers. The B.C. NDP responded as one would expect with a threat to take the Alberta government to court over the bill. Personally I think that Justin Trudeau’s campaigning against the structure of the NEB, trying to convince Canadians that it was flawed and must be replaced gave pipeline opponents the help they needed. Plus he believed that the carbon tax for pipeline idea was the answer. And he decided that it made more sense to run a pipeline through Burnaby than further up the coast near Prince Rupert and put a tanker ban in place. So in my opinion this is a political crisis that was created by our Prime Minister! Enjoy your day